People ex rel. Sweet v. Raymond

Burr, J.: The charter of the city of Rew Rochelle provides, among other things, that “ The common council shall, at its first ■ meeting in each official year, or as soon thereafter as practicable, fix and determine the legal fee per folio at which all notices, ordinances, by-laws, rules and regulations of the common council, * * * and such other matters as the common council may direct to be published, shall be published by the official newspapers of said city, and thereupon shall designate two newspapers published in said city that fairly represent the two principal political parties into which the people of the city are divided; in which the same shall be published at the fees so prescribed. The newspapers so designated shall be the official newspapers of the city for the ensuing official year for the purposes aforesaid, and until the next annual designation.” (Laws of 1899, chap. 128, § 62.) By the same act it is further provided that the official year of the city shall, except as may be therein otherwise provided, commence with the first day of January in each year. (Id. § 5.) On the 28th day'of January, 1908, the common council of the city adopted a resolution, which was subsequently approved by the mayor, which, among other things, provided that the legal fee for the publication of notices, ordinances and such other matters as the common council might direct to be published, should be “fixed and determined at the sum or price of fifty cents per folio for each and every insertion ; and that the Rew Rochelle Press and the Rew Rochelle Paragraph, two newspapers published in the City of [162] Hew Rochelle;, that fairly represent the two principal political parties into which the people of the City are divided,” should be and they were thereby designated as the two newspapers in which said matter should be published, which two newspapers should be the official newspapers of the city of Hew Rochelle for the ensuing year. Thereafter, in accordance with the terms of such resolution, the various notices, ordinances, by-laws, rules and regulations of the common council and of the boards of the said city of Hew Rochelle were delivered to and accepted and printed by the said papers in the regular issues thereof for ¡such ensuing year. This proceeding is brought on the relation of 'Henry Sweet to review the determination of the common council in so far as it designated the Hew Rochelle Paragraph as oné of the papers in which said notices should be published. Thé relator claims -that, while the HeW Rochelle Press fairly represents the Democratic party, the Hew ¡Rochelle Paragraph does., not fairly represent the Republican party, which parties are the two principal political parties into which the.people of the city are divided. At the threshold of the proceeding We are met with two objections to the maintenance thereof which seem to us'to he insuperable. An application for a writ of certiorari must be made by or in behalf of a person aggrieved by the determination to be reviewed. (Code Civ. Proc. § 2127; People ex rel. Second Avenue R. R. Co. v. Board of Comrs., etc., of N. Y., 97 N. Y. 37.) It appears that the relator is the publisher of a newspaper published in the city of Hew Rochelle calle'd the Hew Rochelle Pioneer, which paper he claims has constantly and, consistently advocated the principles of and fairly represented the Republican party. It does not appear, however, that there are not other newspapers published in the said city which in like manner may he said to fairly represent the principles bf that party, and there is nothing from which this court can determine that if the decision of the common council were set aside the paper of which the relator is the owner and publisher Woiild be designated as one of the official newspapérs of the city.' It follows, therefore, that the relator is not a person aggrieved by the determination-of the common council within the meaning of the statute. Again, the¡ ensuing official year for which the newspaper known as the Hew Rochelle Paragraph was designated as one of the [163] official newspapers of the city terminated on the 1st day of January, 1909. • There is no claiffi that any of the notices or ordinances required to, be published in the official newspapers.of the said city have been. published during the year past in the New Rochelle Pioneer, of which the relator is the owner and publisher. ■ No claim could, therefore, arise in his favor against the city if the determination, sought to be reviewed was erroneous, since the city would not be liable tó him for services which he had not rendered. If the respondent Forbes,, who is the owner and publisher of the New Rochelle Paragraph, has no valid claim against the city because the designation of that paper as one of the official newspapers was in direct violation of the provisions of the statute, it may be that a taxpayer’s action will lie to restrain the payment of the claim or to recover, back the moneys if unlawfully paid. ■ Be that as it may, for the reasons stated this proceeding is improperly brought, and the writ of certiorari must be quashed and the proceedings dismissed, with costs. Hirschberg, P. J., and Jenks, J., concurred; Woodward, J., concurred in separate opinion, and Gaynor, J., concurred on the ground that the action of the common council is not reviewable and that he docs not see how the publisher after doing the service could be prevented from getting the compensation'by a taxpayer’s action; that his newspaper is the legal appointee, and that is conclusive on the question of compensation.